For the purposes of this test case it was assumed that black and
minority ethnic ('BME') candidates over the age of 35 were
systematically less likely than non-BME and younger candidates to pass a
Core Skills Assessment and so to obtain promotion in the Civil Service.
At a pre-hearing review the Respondent had argued successfully that the
claims of indirect discrimination could not succeed unless the
individual Claimants could prove the reason they failed the test.
Otherwise, they could not show that they were 'at that disadvantage' as
required by s.19(2)(c) of the Equality Act 2010.
The EAT held that the tribunal judge had erred in imposing that
requirement which was not required by the statute. It did however remain
open to Respondents to indirect discrimination claims to show that a
particular member of the disadvantaged group was not in fact
disadvantaged by the relevant provision, criterion or practice.
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Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.
Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.